Opinion
# 2015-049-013 Claim No. 125022 Motion No. M-85757 Cross-Motion No. CM-85867
02-13-2015
DEBRA MCDONALD v. THE STATE OF NEW YORK, and NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
Cronin & Byczek, LLP By: Moshe C. Bobker, Esq. Eric T. Schneiderman, New York State Attorney General By: Suzette Corinne Rivera, Assistant Attorney General
Synopsis
The Court dismissed a claim alleging violations of the New York State Human Rights Law as untimely under Court of Claims Act § 10(3), and granted claimant's application to serve and file a late claim pursuant to Court of Claims Act § 10(6).
Case information
| UID: | 2015-049-013 |
| Claimant(s): | DEBRA MCDONALD |
| Claimant short name: | MCDONALD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK, and NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125022 |
| Motion number(s): | M-85757 |
| Cross-motion number(s): | CM-85867 |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Cronin & Byczek, LLP By: Moshe C. Bobker, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Suzette Corinne Rivera, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 13, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In a claim filed September 24, 2014, claimant Debra McDonald alleges that her employer New York State Department of Correctional Services and Community Supervision ("DOCCS"), discriminated against her because of her race, gender, and color, subjected her to a hostile work environment, and retaliated against her for having lodged complaints of discrimination. The claim sounds in violations of the New York State Human Rights Law ("HRL") (Executive Law § 290 et seq.).
Claimant now moves for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6) (Motion No. M-85757). Defendant State of New York cross moves to dismiss the claim as untimely (Cross Motion No. CM-85867), and opposes the section 10(6) motion. Specifically, defendant argues that claim no. 125022 was timely only if filed and served within 90 days of accrual. Because the claim gives the accrual date of April 25, 2014, and the claim was filed with the Court on September 24, 2014, and served on the Office of the Attorney General on September 29, 2014, it was filed after this period expired. For her part, claimant asserts that her discrimination claim is timely under the "continuing violation doctrine." Nonetheless, she states that she is bringing the late claim application out of "an abundance of caution" (Cl. Aff. n2).
The time to bring an action in the Court of Claims for an HRL violation is not without controversy. On the one hand, the Third Department found in Bhagalia v State of New York (228 AD2d 882 [3d Dept 1996]), that the 90-day period governing negligence claims set forth in Court of Claims Act § 10(3) applies to an HRL claim (see id. at 883; see also Brown v State of New York, 125 AD2d 750 [3d Dept 1986] [same]). Subsequent opinions of this Court, however, have held that claims arising under the Human Rights Law should be subject to the six-month limitations period set forth in Court of Claims Act § 10(4), which governs any claim "not otherwise provided for by this section" (see Clauberg v State of New York, 19 Misc 3d 942, 948 [Ct Cl 2008] [internal quotation marks and citation omitted] [since cause of action under Human Rights Law is a "statutory cause of action and not a traditional common-law tort," it is subject to a six-month limitations period]; Rehman v State of New York, UID No. 2009-045-021 [Ct Cl, Lopez-Summa, J., Aug. 5, 2009] [section 10(4) applies to discrimination claims brought in the Court of Claims]).
I find the reasoning of Clauberg to be persuasive. Section 10(4) is generally applicable to claims arising under statute (see e.g. Alston v State of New York, 97 NY2d 159 [2001]), and the Human Rights Law does not require a showing of negligence. I am nevertheless bound by the controlling appellate authority set forth in Bhagalia (see Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984] ["the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule "]). Moreover, the continuing violation doctrine is of no aid to claimant. Under this doctrine - assuming without deciding that it is applicable here - the claim would accrue at the time of the last discriminatory act (Clark v State of New York, 302 AD2d 942 [4th Dept 2003], quoting Cornwell v Robinson, 23 F3d 694, 704 [2d Cir 1994]). Since the last act cited in the claim accrued more than ninety days before the claim was filed and served, it is untimely.
Accordingly, claim no. 125022 must be dismissed as untimely. I turn, then, to McDonald's late claim application.
Late Claim Relief:
A three-year statute of limitations applies to discrimination claims (see Koerner v State of New York, Pilgrim Psychiatric Ctr., 62 NY2d 442, 447 [1984]). The earliest allegation of a discriminatory practice in the proposed claim is December 2, 2012, making claimant's application with respect to each allegation timely,
Under the Human Rights Law, there are two methods to measure the accrual date. A discrete retaliatory or discriminatory act is independently actionable, and such a cause of action accrues on the date that the wrongful act occurs. In contrast, a continuing violation "may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice" (see Clark, supra). As noted such a claim accrues at the time of the last discriminatory act (id.). I need not determine which applies to the instant claim, since the allegations fall within the limitations period under either theory.
and thus the Court has jurisdiction to grant relief under section 10(6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the claimant has any other available remedy (id.).
Claimant's application is supported by an affirmation of counsel; a proposed claim, verified by counsel (identical to claim no. 125022); and a "Charge of Discrimination" filed with the U.S. Equal Employment Opportunity Commission ("EEOC").
By affirmation of an assistant attorney general, defendant opposes the application, arguing that the proposed claim does not appear meritorious, claimant has no reasonable excuse for the delay, and claimant may have an alternate remedy.
With respect to the excuse for the failure to timely serve and file a claim, claimant states that there was continuing and repetitive discrimination and harassment against her, but nonetheless hoped that the situation would be resolved internally without the need for judicial intervention. Claimant's anticipation of a resolution, however, is generally not a valid excuse for purposes of section 10(6) (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986] [anticipation of settlement not sufficient to excuse the delay in filing]). Therefore, this factor weighs against granting claimant's application.
Defendant does not oppose the application with respect to the factors of notice, opportunity, and prejudice. These factors are therefore deemed to weigh in claimant's favor (see Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A], 2006 NY Slip Op 51775[U], at *2 [Ct Cl, 2006] [defendant's failure to address certain section 10(6) factors "entitles the court to presume that they weigh in favor of granting the motion"]; Fine v State of New York, 10 Misc 3d 1075[A], 2005 NY Slip Op 52240[U] at *4 [Ct Cl 2005] [late claim factors not opposed by the defendant are "presumed to weigh in Claimant's favor"]).
The appearance of merit is generally considered the "most important" criteria in ruling on a section 10(6) application (see Matter of Professional Charter Servs. v State of New York, 166 Misc 2d 306, 308 [Ct Cl 1995]). This factor is assessed under the twofold test set forth in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To meet this test: (1) the proposed claim "must not be patently groundless, frivolous, or legally defective," and (2) the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (id. at 11). It is claimant's burden to establish the appearance of merit (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]), and mere conclusory allegations of wrongdoing do not suffice (see Witko v State of New York, 212 AD2d 889 [3d Dept 1995]).
Defendant argues that the claim fails to state a cause of action against the State, as there is no indication that claimant grieved any of the issues, and as member of a union she is bound by the collective bargaining agreement ("CBA") and is subject to arbitration. Defendant also states that it is not clear whether claimant exhausted her administrative remedies, and that any objection to an administrative board's determination is subject to a CPLR article 78 proceeding and not an action in the Court of Claims.
In response, claimant states that even if a CBA were in place, an employee does not automatically waive the right to a judicial forum for a such a claim. Rather, claimant contends the issue depends on the specific terms of the agreement. She avers that there in nothing before the Court which permits a determination that claimant was restricted to arbitration and ultimately a review via an article 78 proceeding.
Defendant's argument that claimant is bound by a CBA that waives her right to a judicial forum is speculative at best. The State (unlike claimant) would be a party to any such agreement, but it has not provided a copy thereof, or offered any evidence in this regard. The record is therefore devoid of any proof as to the terms of the governing CBA, whether it would apply to discrimination claims, and what it requires of claimant in this case. Absent such evidence, the State has failed to show a lack of apparent merit on this ground.
As to defendant's assertion that claimant has failed to exhaust her administrative remedies, this misstates the governing law, since there is no exhaustion requirement when a claimant elects to sue for damages under the Humans Rights Law (see Butler v New York Health & Racquet Club, 768 F Supp 2d 516 [SD NY 2011]; Branker v Pfizer, Inc., 981 F Supp 862 [SD NY 1997]).
Further, Executive Law §297(9) provides in relevant part that, "[a]ny person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages . . . unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this chapter." Claimant's filing with the EEOC, however, does not constitute an election of remedies under this provision (see Barr v BJ's Wholesale Club, Inc., 62 AD3d 820 [2d Dept 2009]).
Finally, the proposed claim makes extensive, specific allegations that McDonald was subject to harsher discipline and other forms of disparate treatment than correction officers who were male and/or white. Such allegations, which the State does not seek to rebut for purposes of this motion, are sufficient to meet the test for appearance of merit set forth in Santana.
As to the availability of an alternate remedy, defendant asserts that claimant can proceed via collective bargaining and/or an article 78 proceeding. The same argument is made by defendant vis-a-vis the factor of apparent merit and already has been addressed and rejected by the Court, supra. Moreover, an article 78 proceeding is not the appropriate forum for seeking monetary damages.
Accordingly, having reviewed the submissions and having considered all of the factors enumerated in the Court of Claims Act § 10(6), it is
ORDERED that cross motion no. CM-85867 be granted, and claim no. 125022 be dismissed; and it is further
ORDERED that motion no. M-85757 be granted, and that within thirty (30) days of the filing of this Decision and Order, claimant shall serve and file a properly verified claim in the form of the proposed claim annexed as exhibit A to her moving papers, entitling it "Claim," and naming the State of New York as the only defendant. In serving and filing the claim, claimant shall comply with all of the requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a.
February 13, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Leave to Serve and File a Late Claim, Affirmation in Support and annexed exhibits.
2. Defendant's Notice of Cross Motion, Affirmation in Support and annexed exhibit.
3. Claimant's "Affirmation in Further Support of Claimant's Motion and in Opposition to Defendants' Cross-Motion."